IIUM Law Journalhttp://journals.iium.edu.my/iiumlj/index.php/iiumlj
<p>IIUM Law Journal is a peer-reviewed journal, published twice a year, with a dedicated mission of contributing to original and high quality research. The journal accepts scientific research papers on law reform, issues relating to the application of law in practice, comparative legal analysis and harmonisation of Islamic law and civil law.&nbsp;</p> <p><span lang="EN-US">The Journal considers three types of contributions:&nbsp;<em>articles</em>&nbsp;reporting findings of original research;&nbsp;<em>case notes</em>&nbsp;analyzing current and landmark decisions of domestic and international courts and tribunals; and&nbsp;<em>book reviews</em>&nbsp;commenting on recently published law books.&nbsp;</span></p> <h3>VOL 25, NO 1 (2017): IIUM LAW JOURNAL is published.</h3> <div id="issueDescription">&nbsp;<strong>TABLE OF CONTENTS</strong></div> <h4 class="tocSectionTitle">ARTICLES &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</h4> <table class="tocArticle" width="100%"> <tbody> <tr valign="top"> <td class="tocTitle"><a href="/iiumlj/index.php/iiumlj/article/view/287">CRAFTING ANTI-TERRORISM LAW IN MALAYSIA: STRIKING A DELICATE BALANCE BETWEEN NATIONAL SECURITY AND PERSONAL LIBERTY</a></td> <td class="tocGalleys"><a class="file" href="/iiumlj/index.php/iiumlj/article/view/287/210">PDF</a></td> </tr> <tr> <td class="tocAuthors">Ho Peng Kwang, Johan Shamsuddin Sabaruddin, Saroja Dhanapal</td> <td class="tocPages">&nbsp;1-28</td> </tr> </tbody> </table> <table class="tocArticle" width="100%"> <tbody> <tr valign="top"> <td class="tocTitle"><a href="/iiumlj/index.php/iiumlj/article/view/318">PROTECTING ASYLUM-SEEKERS PRIOR TO DETERMINATION OF REFUGEE STATUS: REINTERPRETING THE REFUGEE CONVENTION AND ASSESSING CONTEMPORARY STATE PRACTICE ON NON-REFOULEMENT</a></td> <td class="tocGalleys"><a class="file" href="/iiumlj/index.php/iiumlj/article/view/318/206">PDF</a></td> </tr> <tr> <td class="tocAuthors">Abdul Ghafur Hamid, Shaban Abdul Majeed Phiri</td> <td class="tocPages">&nbsp;29-62</td> </tr> </tbody> </table> <table class="tocArticle" width="100%"> <tbody> <tr valign="top"> <td class="tocTitle"><a href="/iiumlj/index.php/iiumlj/article/view/306">LEGAL CHALLENGES CONCERNING SOME BENEFICIARIES OF ESTATES GOVERNED BY ISLAMIC LAW IN NIGERIA</a></td> <td class="tocGalleys"><a class="file" href="/iiumlj/index.php/iiumlj/article/view/306/207">PDF</a></td> </tr> <tr> <td class="tocAuthors">Ismael Saka Ismael, Abdulmumini Adebayo Oba</td> <td class="tocPages">63-92</td> </tr> </tbody> </table> <table class="tocArticle" width="100%"> <tbody> <tr valign="top"> <td class="tocTitle"><a href="/iiumlj/index.php/iiumlj/article/view/309">ACKNOWLEDGING LAND RIGHTS OF THE ORANG ASLI: A HISTORICAL PERSPECTIVE OF LAWS IN PENINSULAR MALAYSIA</a></td> <td class="tocGalleys"><a class="file" href="/iiumlj/index.php/iiumlj/article/view/309/205">PDF</a></td> </tr> <tr> <td class="tocAuthors">Izawati Wook</td> <td class="tocPages">&nbsp;93-120</td> </tr> </tbody> </table> <table class="tocArticle" width="100%"> <tbody> <tr valign="top"> <td class="tocTitle"><a href="/iiumlj/index.php/iiumlj/article/view/305">ADMINISTRATION OF A MUSLIM’S ESTATE UNDER SECTION 17 OF THE PUBLIC TRUST CORPORATION ACT 1995 WITH SPECIAL REFERENCE TO TRANSFER OF VEHICLES</a></td> <td class="tocGalleys"><a class="file" href="/iiumlj/index.php/iiumlj/article/view/305/208">PDF</a></td> </tr> <tr> <td class="tocAuthors">Muhammad Amrullah bin drs Nasrul, Wan Noraini Mohd Salim</td> <td class="tocPages">&nbsp;121-136&nbsp;</td> </tr> </tbody> </table> <table class="tocArticle" width="100%"> <tbody> <tr valign="top"> <td class="tocTitle"><a href="/iiumlj/index.php/iiumlj/article/view/314">CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES</a></td> <td class="tocGalleys"><a class="file" href="/iiumlj/index.php/iiumlj/article/view/314/209">PDF</a></td> </tr> <tr> <td class="tocAuthors">Kareem Adebayo Olatoye, Abubakri Yekini</td> <td class="tocPages">&nbsp;137-159</td> </tr> </tbody> </table> <p>&nbsp;<strong>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;ETHICAL STATEMENT</strong></p> <p><span lang="EN-US"><span lang="EN-US">The IIUM Law Journal is committed to meeting high standards of ethical behaviour at all stages of the publication process. In our <a href="/iiumlj/index.php/iiumlj/manager/files/Downloads/CODEOFPUBLICATIONETHICS.docx" target="_blank"><span style="text-decoration: underline;">Code of Publication Ethics</span></a>, we set out general expectations for authors, editors, and reviewers of our journal.&nbsp;</span></span></p> <div id="__if72ru4sdfsdfruh7fewui_once" style="display: none;">&nbsp;</div> <div id="__hggasdgjhsagd_once" style="display: none;">&nbsp;</div>en-US<ol><li><strong>Consent to publish</strong>: The Author(s) undertakes that the article named above is original and consents that the IIUM Press publishes it.</li><li><strong>Previous publication</strong>: The Author(s) guarantees that the article named above has not been published before in any form, that it is not concurrently submitted to another publication, and that it does not infringe anyone’s copyright. The Author(s) holds the IIUM Press and Editors of IIUM Law Journal harmless against all copyright claims.</li><li><strong>Transfer of copyright</strong>: The Author(s) hereby transfers the copyright of the article to the IIUM Press, which shall have the exclusive and unlimited right to publish the article in any form, including on electronic media. The Journal in turn grants the Author(s) the right to reproduce the article for educational and scientific purposes, provided the written consent of the Publisher is obtained. </li></ol>iiumlj@iium.edu.my (Prof. Dr. Abdul Ghafur Hamid)iiumlj@iium.edu.my (Sodiq Omoola)Mon, 10 Jul 2017 00:00:00 +0800OJS 3.0.2.0http://blogs.law.harvard.edu/tech/rss60 CRAFTING ANTI-TERRORISM LAW IN MALAYSIA: STRIKING A DELICATE BALANCE BETWEEN NATIONAL SECURITY AND PERSONAL LIBERTYhttp://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/287
<p>The sudden rise of this radical terror group calling themselves the Islamic State in Iraq and the Levant (ISIL) and the brazen show of decapitation of their captives have sent shock waves across the globe. This prompted the United Nation Security Council to adopt Resolution 2178 calling for its members to take preventive counter-terrorism measures to contain the spread of this radical ideology propagated by ISIL. Malaysia in responding to this call, has passed and enacted the Prevention of Terrorism Act, 2015 (POTA) despite receiving much criticism that POTA has eroded fundamental human rights, in particular, the right to one’s liberty. This article examines the challenges faced by the government in balancing between national security and personal liberty when crafting POTA. The article shows that equilibrium is hard to achieve between the two competing rights and thus has become disproportionate by looking at the POTA itself. The article concludes Malaysia’s counter-terrorism strategy prioritises national security over basic human rights, which clearly is abhorrent to the rule of law and that in fact, the threat posed by terrorism could have been exaggerated by the government in their efforts to fight terrorism as there are many other threats to life which call for more attention than the threat of terrorism itself.</p>Ho Peng Kwang, Johan Shamsuddin Sabaruddin, Saroja Dhanapal
##submission.copyrightStatement##
http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/287Tue, 04 Jul 2017 08:06:42 +0800 PROTECTING ASYLUM-SEEKERS PRIOR TO DETERMINATION OF REFUGEE STATUS: REINTERPRETING THE REFUGEE CONVENTION AND ASSESSING CONTEMPORARY STATE PRACTICE ON NON-REFOULEMENThttp://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/318
<p>The present decade is confronted with unprecedented refugee crises, dwarfing all similar refugee crises ever witnessed by mankind before. The plight of asylum-seekers, particularly prior to the determination of their refugee status by the host country, is of great concern to the UNHCR and the international community, as this is the time when they are most vulnerable. The sad situation of these asylum-seekers, their sufferings on small boats being packed like sardines on angry seas, and their pain in the hands of cruel human traffickers, beg the crucial question of whether they are protected in any way by international refugee law or left unprotected. With a view to answering this question, the present study applies the legal doctrinal method and attempts a holistic interpretation of articles 1A(2), 31(1) and 33 of the 1951 Refugee Convention. The study finds that the term ‘refugee’ in these articles is in effect referring to ‘asylum-seekers’ who fulfil the constituent elements of a refugee under the Convention and that these asylum-seekers cum refugees are protected by the Convention even before the regularisation of their refugee status. The key protection stems from the principle of non<em>-refoulement</em>. State practice nevertheless is not encouraging and potential States of refuge are very weak in honouring this principle, which is a corner stone of international refugee law. The study concludes with suggestions for resolving this core issue.</p>Abdul Ghafur Hamid, Shaban Abdul Majeed Phiri
##submission.copyrightStatement##
http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/318Tue, 27 Jun 2017 19:03:03 +0800 LEGAL CHALLENGES CONCERNING SOME BENEFICIARIES OF ESTATES GOVERNED BY ISLAMIC LAW IN NIGERIAhttp://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/306
<p>Under Islamic law, succession is divided into inheritance<em> </em>(<em>mirath</em>) and wills (<em>wasiyyah</em>) with detailed rules on how the estate of a deceased Muslim should be distributed. Islamic law of succession of the Maliki school is applicable in Nigeria as part of the personal law of Muslims. The application of Islamic legal norms in the country is generally limited by the parameters set by the state. Islamic law and its administration face many challenges from the absence of a legal framework for a systematic administration of estates governed by Islamic law. Other challenges come from the cultures and social practices of the people and from international human rights law and the bill of rights in the Nigerian constitution that vary from some provisions of Islamic succession law. This article analyses the effects of the above on the following classes of beneficiaries: non-Muslims, female heirs, illegitimate children, adopted children, heirs outside the jurisdiction of the court, orphaned grandchildren, dissenting heirs whose concurrence is required, successors to deceased heirs,<strong> </strong>and the <em>Bait ul-Mal</em> (‘Public Treasury’). The article found that in the face of these challenges, Nigeria remains largely faithful to the Maliki School. The article suggests areas where more compliance with Islamic law is needed.</p>Ismael Saka Ismael, Abdulmumini Adebayo Oba
##submission.copyrightStatement##
http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/306Tue, 04 Jul 2017 08:13:14 +0800 ACKNOWLEDGING LAND RIGHTS OF THE ORANG ASLI: A HISTORICAL PERSPECTIVE OF LAWS IN PENINSULAR MALAYSIAhttp://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/309
<p>The perspective that the <em>Orang Asli</em> communities do not have legal rights to their customary land remains despite common law recognition by the courts in a series of cases since two decades ago. To the contrary, this article argues that such a perspective has no basis under the law. By using a historical research approach, it is shown that it has never been the case under the law, policy and practices that the customary land of the <em>Orang Asli</em> was denied their entitlement. In practice, the law and official policy and their development in history observe and acknowledge the existing rights to land and resources, which arose from custom of the local inhabitants including the <em>Orang Asli</em>. The law inherently recognises the <em>Orang Asli</em> as having their own distinct political and social identities. The article provides a historical perspective of law and official practices in the Malay Peninsula in relation to land rights of the <em>Orang Asli</em> and trace their origin to British conduct in North America and the Indian Empire which directly influenced their actions in the Malay states. The reality is that, rather than the denial of the land rights of the <em>Orang Asli</em> under the law, there were other factors that led to the continued loss of their land. Conflicting economic interests and cultural attitudes compounded by a change towards legal positivism that came to prevail both, in international law and national legal systems, hampered the recognition of law relating to the land rights of the <em>Orang Asli</em>, who are a minority group that lacks political power. Following this argument, the development of Malaysian common law, beginning from the case of <em>Adong bin Kuwau v Kerajaan Negeri Johor </em>in 1997 that addressed the concerns of the <em>Orang Asli</em>, as well as the natives in East Malaysia, is not novel; it is merely the application of a long standing legal principle in the jurisdiction.</p>Izawati Wook
##submission.copyrightStatement##
http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/309Tue, 04 Jul 2017 08:15:34 +0800 ADMINISTRATION OF A MUSLIM’S ESTATE UNDER SECTION 17 OF THE PUBLIC TRUST CORPORATION ACT 1995 WITH SPECIAL REFERENCE TO TRANSFER OF VEHICLEShttp://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/305
<p>As one of the administrative bodies, Amanah Raya Berhad (ARB) possesses jurisdiction in administering the deceased’s movable estate through the issuance of letters of declaration and direction respectively. Applying for such document requires the applicant to attach the <em>fara’id</em> certificate as part of the application. The problem, however, is the superfluity of the <em>fara’id</em> certificate in estate cases involving the transfer of ownership of the deceased’s vehicle. This is due to the rule set by the Road Transport Department (RTD) which allows for only a single name to be registered as the new owner, and thus renders the <em>fara’id</em> certificate inoperable. Since the ARB still requires the <em>fara’id</em> certificate in cases involving the administration of vehicles, this requirement is burdensome to the beneficiaries as they have to incur additional costs, as well as spend time and effort to obtain the certificate. This article addresses the problem in relation to estate administration by ARB involving vehicles under Section 17 of the Public Trust Corporation Act 1995 and analyses the implication of such rule towards estate administration. It is based primarily on the analysis of written sources, namely, textbooks, statutes, by laws and journals. The findings from this article show that there is a need to improve the policy of the ARB and the RTD in providing a more efficient means to the public in the administration of the estate of a Muslims.</p>Muhammad Amrullah bin drs Nasrul, Wan Noraini Mohd Salim
##submission.copyrightStatement##
http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/305Tue, 04 Jul 2017 08:21:13 +0800 CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVEShttp://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/314
<p>The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the <em>Shari’ah</em> may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.</p>Kareem Adebayo Olatoye, Abubakri Yekini
##submission.copyrightStatement##
http://journals.iium.edu.my/iiumlj/index.php/iiumlj/article/view/314Tue, 04 Jul 2017 08:19:42 +0800